Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 19, 2015.
Appeal from the Criminal Court for Union County No. 4660 E. Shayne Sexton, Judge.
Jordan C. Long, Knoxville, Tennessee, for the appellant, Jerry Richard Masingo.
Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Lori Phillips-Jones, District Attorney General; and Tracy Tipton Jenkins, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and D. Kelly Thomas, Jr., JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE.
This case relates to the death of Arlos Masingo, the Defendant's brother. At the trial, Patricia Masingo testified that she and the victim had been married thirty-eight years at the time of the victim's death. On September 11, 2012, the victim was found non-responsive inside his truck outside a bar called The Shack. Ms. Masingo last saw the victim at their home around 3:00 or 4:00 p.m. on September 10, when he was wearing boots, shorts, a shirt, and a ball cap. Ms. Masingo left home after the victim and returned home around midnight. The victim's truck was not at the house. Ms. Masingo identified a photograph of the truck and stated that she learned the victim and his truck were found at The Shack. Ms. Masingo went to the bar and found the victim non-responsive, lying on the floorboard of the truck.
Ms. Masingo testified that she did not speak to the Defendant on the night of September 10, 2012, although the Defendant knew her telephone number and where she and the victim lived. She said the Defendant also knew her three sons' telephone numbers and addresses. She said the Defendant did not contact her after the victim was found, did not come to the hospital, and never apologized. Ms. Masingo dispensed the victim's pain and blood pressure medications in the morning and Xanax at bedtime, and she said the victim was healthy when he left home on September 10. She said that to her knowledge, the victim was not drinking alcohol that day. She did not know anyone who "had a problem" with the victim.
On cross-examination, Ms. Masingo testified that the victim was driving an ATV without a helmet when he left home around 3:00 or 4:00 p.m. The ATV was in good condition and had not been wrecked recently. Ms. Masigno said the victim routinely wore a bandage around his leg because of a previous leg injury. She gave the victim his blood pressure and pain medications earlier that morning. She agreed the victim was not wearing his cap when she found him inside his truck, although it was inside the truck.
Travis Masingo, the victim's son, testified that on September 11, 2012, before 9:00 a.m., he found the victim lying inside the victim's truck at The Shack. He took a photograph of the victim lying inside the truck because he knew something was wrong and said he attempted unsuccessfully to wake the victim. The victim had no visible injuries. He said the victim did not smell of alcohol.
Mr. Masingo testified that he last saw the victim sometime on September 10, 2012. He said that although the Defendant was his uncle, the Defendant did not contact him or his wife on the night of September 10, did not come to the hospital, did not attend the victim's funeral, and did not apologize for what happened to the victim.
On cross-examination, Mr. Masingo testified that he had searched previously for the victim after the victim had been drinking. He denied he had ever found the victim unconscious in his truck and said he always "got [to the victim] before he got to that point." He did not see any cigarettes outside the victim's truck window. He said he first learned of the victim's head trauma at the hospital.
Duane Warren testified that his father, Ed Warren, owned The Shack where he worked. He said he cleaned the parking lot daily and identified a portion of a cinder block he found at the front of the parking lot on September 12, 2012. Although Mr. Warren did not know what happened to the victim, he saw the victim inside his truck around 8:15 a.m. on September 11. The victim was not moving, but Mr. Warren heard him snoring. He said the victim did not speak or communicate. He left to purchase building materials and returned later.
Mr. Warren testified that on September 12, 2012, he spoke to the Defendant at The Shack. Mr. Warren asked the Defendant if he knew the victim was in the hospital. The Defendant said he knew and admitted he "smacked" the victim a couple of times. Mr. Warren did not work on September 10.
On cross-examination, Mr. Warren testified that he cleaned the parking lot daily because patrons discarded trash in the parking lot. He agreed the cinder block was not in the parking lot on September 11. He denied there were cinder blocks in the vicinity. On redirect examination, he clarified that he saw the cinder block the day after the incident.
Union County Sheriff's Detective Phillip Johnson testified that he responded to the hospital on September 11, 2012, and that the victim died the following day. He interviewed the Defendant before the victim's autopsy. The Defendant's statement was read to the jury. In the statement, the Defendant said that on September 10, 2012, he and Troy Johnson were at "old Judy's bar" when Mr. Johnson received a telephone call from his girlfriend, Tracy Williams, requesting they pick her up from work at The Shack. The Defendant and Mr. Johnson drove to the bar in Mr. Johnson's car and arrived around 10:00 p.m. The Defendant said he entered the bar and drank one beer. The Defendant saw Joe Brummett, Mary Edwards, Ed Warren, Ms. Williams, and the victim. The victim sat near the Defendant.
The Defendant stated the victim wanted to discuss their mother, but the Defendant told the victim that he was "not listening to this." He said the victim felt like the victim cared for their mother more than anyone else. Ed Warren announced the bar was closing, and the victim left the bar through the back door. The Defendant, Ms. Williams, Mr. Johnson, and Mr. Warren left through the front door. The Defendant said the victim appeared outside the front door and told the Defendant that he wanted to talk. Mr. Warren and Ms. Williams went inside. The victim walked toward the Defendant and Mr. Johnson, who was standing beside the Defendant. The Defendant said he still did not want to talk to the victim, and Mr. Johnson got between them. The victim stepped around Mr. Johnson, and the Defendant admitted he slapped "the s---" out of the left side of the victim's face. He denied hitting the victim with his fist. The Defendant said that the victim fell to the ground but that he did not think the victim fell hard enough to cause injuries. After the victim fell, the Defendant sat on the porch of the bar, and the Defendant thought Mr. Warren and Mr. Johnson placed the victim inside the truck. The Defendant, Mr. Johnson, and Ms. Williams left in Mr. Johnson's car and drove to the Defendant's house for dinner.
The Defendant stated he did not hear the victim say anything after falling. The Defendant did not know if the victim could walk and stated that he did not help place the victim inside the truck. The Defendant said he asked Mr. Johnson if the victim was okay, and Mr. Johnson said, "[Y]es." The Defendant stated that he told the victim two or three times he did not want to discuss their mother and that the victim should have gone home.
Detective Johnson testified that he interviewed Ms. Williams and Mr. Johnson after speaking with the Defendant and that he spoke to the Defendant again on September 18, 2012. The Defendant provided a statement, which was read to the jury. In the statement, the Defendant told the detective that he wanted to "change a few things" in his previous statement. The Defendant clarified that he did not know if Ms. Williams returned to the bar or went to her car. The Defendant said he did not recall seeing Ms. Williams outside after he left the bar. The Defendant also stated that Mr. Johnson did not get between him and the victim and admitted his previous statement that the victim stepped around Mr. Johnson was untrue. The Defendant said the victim "just kept coming towards me. This is when I slapped him." The Defendant maintained that he did not help the victim inside the truck and that he sat on the porch.
Detective Johnson identified a photograph depicting what he thought were drag marks in the unpaved parking lot from the corner of the building where the incident occurred to the victim's truck. He said the drag marks were consistent with where the Defendant said the victim was standing before falling. He also identified a photograph of portions of a cinder block found at the scene and said they were found about ten yards from where the victim fell. He said no additional pieces of cinder block were found in the parking lot.
Detective Johnson testified that the victim's cap was found inside the truck and that it was not analyzed by the Tennessee Bureau of Investigation (TBI) because the inside of the truck was dirty, the hat was found days later under where the victim had lain, and there were conflicting statements about whether the victim was wearing it at the time of the incident. He agreed the victim had no visible signs of injuries.
Detective Johnson testified that he observed the autopsy and that the medical examiner found a mark under the skin of the left side of the head, which was consistent with one of the pieces of cinder block found at the scene. He said that the rear right side of the victim's skull was cracked, ...